by Lara Friedman
There’s been a lot of debate over the Israel Anti-Boycott Act. The ACLU—the standard-bearer of all matters related to civil rights and liberties—says unequivocally that the bill violates the First Amendment right to free speech. Others, including some progressives who one would normally expect to defer to the ACLU’s judgment, insist it does not. All of these arguments deal with the hypothetical. To understand the potential impact of the bill, it is illustrative to move from the hypothetical to the actual. I offer myself as a case study.
As a liberal Zionist, I fiercely defend Israel’s right to exist, its right to security, and its legitimacy as a member of the community of nations. I also fiercely care about what kind of state Israel exists as and the values it embodies. I want to see Israel flourish as a liberal democracy that fully implements the rule of law, adheres to international norms, and respects the civil and human rights of all peoples living under its authority.
For all of these reasons, I vehemently oppose Israel’s now 50-year occupation of the West Bank, Gaza, and East Jerusalem, and the odious policies that undergird it. And for all of these reasons, for decades I have advocated in favor of actions—by individuals, businesses, governments, and international bodies—that support Israel by challenging Israel’s ever-expanding settlement enterprise and ever-deepening occupation.
As for activism targeting Israel, I do not personally advocate boycotts, divestment, and sanctions (BDS) against Israel itself, but I defend the right of others to do so. Regardless of why people advocate BDS—and I know from personal experience that it is a convenient lie to suggest that only those who are motivated by hatred of Israel or anti-Semitism engage in BDS—it is a fallacy to suggest that BDS is ipso facto an illegitimate form of protest. Boycotts are protected political speech and are used by Americans—and Israelis—every day to express their beliefs on a wide range of issues. That said, I personally advocate focusing activism on settlements and on the occupation. It is in many ways an arbitrary, manufactured distinction—the government of Israel is inarguably responsible for settlements and for the occupation policies to which I object. But I believe that as a tactic focusing activism this way is far more effective than BDS, making clear that the objective is to change Israeli policies, rather than, as some critics suggest with respect to the global BDS Movement, to undermine Israel’s existence.
In practice, this means that for years I have been a prominent voice both arguing against BDS targeting Israel, and calling for boycotts of settlements products, for truthful labeling of products manufactured in settlements, and for boycott and divestment actions targeting the occupation. I have articulated these views in numerous articles, analyses, and reports. I have spoken on university campuses and in synagogues, and lobbied Congress. I even testified at a special session of the United Nations Security Council.
I have also long urged groups like the UN and EU to promote respect for international law, according to which all settlements are illegal. When the UN and EU have adopted resolutions or decisions reminding nations and companies of the legal obligation to differentiate between sovereign Israel and the occupied territories, and to refrain from activities that support settlements, I have enthusiastically welcomed, endorsed, and echoed these positions—not at the behest of either body, but because these actions align with my own deeply held political views and, indeed, are what I have been calling on these bodies to do all along.
As an aside, it should be emphasized that until quite recently, such differentiation was uncontroversial. Indeed, for decades the demand that the world treat the entirety of the land between the Jordan River and the Mediterranean Sea as a single area was limited to two groups: the Israeli far right, which holds fast to a vision of Greater Israel, and pro-Palestinian hardliners, who hold fast to a vision of a return to the whole of historic Palestine. That changed only in the past few years, as Israeli hardliners began pushing energetically to erase the Green Line and normalize settlements, and as, in tandem with the rightward swing in Israeli politics, pressure on Israeli settlement policies came to be misrepresented, often deliberately and cynically, as a threat against Israel itself. In the U.S., this shift has been mirrored in an ongoing campaign at the state and federal levels that exploits concerns about BDS against Israel to promote laws that protect and serve not Israel, but settlements. The deceptively-named Israel Anti-Boycott Act is just the latest, and most brazen, example of this effort.
With all of this as background, we come to the question: what would the Israel Anti-Boycott Act mean for me? First, let’s be clear: while the bill’s title and its backers contend that it is about stopping boycotts of Israel, in truth it is about preventing boycotts—or any economic pressure—on settlements. Consistent with the legislative campaign described above, Sec. 6 of the bill defines the term “actions to boycott, divest from, or sanction Israel” to mean actions targeting not only business in Israel, but “in Israeli-controlled territories.” So in every place where either the existing law or the new language to be added by the Israel Anti-Boycott Act reads “Israel,” or “the boycotted country,” this would henceforth mean, legally, “Israel-plus-settlements.”
Second, the bill expands existing law to specifically target international governmental organizations —meaning the United Nations and European Union. It would require the President to issue regulations prohibiting “any United States person”—like me—from “taking or knowingly agreeing to take” actions intended to “support any boycott fostered or imposed by any international governmental organization against Israel or request to impose any boycott by any international governmental organization against Israel.” Such actions would include both refusing to do business with settlements based on “a request” of an international organization, and requesting the furnishing of information about who is doing business in settlements.
My endorsement of UN and EU policies calling for differentiation between Israel and settlements—as well as my related work tracking and reporting on economic activity in settlements, and advocating boycotts of settlements—would become “willful” violations of this new law (anyone “who willfully commits, willfully attempts to commit, or willfully conspires to commit, or aids or abets in the commission of” any act prohibited under the law would be in trouble). Were I to continue exercising my right to free speech in opposing settlements and occupation, I could face draconian penalties: punitive fines of between $250,000 and one million dollars, and up to 20 years in prison.
Defenders of the bill argue that it only applies to businesses that take part in an EU- or UN-sponsored boycotts of Israel—something that does not exist (neither the EU or the UN have ever called for boycotting Israel). This raises an important question: why shouldn’t Americans be allowed to take part in non-coercive boycotts (the Arab League Boycott of Israel is an example of a coercive boycott) that are consistent with their political views? But that debate aside, a plain-English reading of the law makes clear that the impact is far wider, seeking to silence, deter, and punish U.S. persons, like me, for exercising the basic right to free political speech in calling for and supporting policies that challenge settlements and occupation.
No doubt the prospect of someone like me facing catastrophic fines and lengthy incarceration for the crime of challenging settlements and the occupation is a source of glee to some in both the U.S. and Israel. These would be the people who believe that the cause of Greater Israel is more important than Israel’s character, American democracy, and the progressive values, such as freedom and justice, that are at the core of my own identity as an American and a Jew.
For everyone else, it should be a source of alarm. To adapt the words of Émile Zola, the real crime is to poison the minds of the naïve and well-intentioned and to stoke reactionary passions and intolerance, hiding a cynical political agenda behind feigned concerns about anti-Semitism. A political agenda that, unchecked, will erode the basic freedoms, grounded in our Constitution, that define America. The real crime is to exploit legitimate concerns for Israel in the service of illiberalism and hatred. The real crime is to abuse the law as a weapon against human rights, civil liberties, truth, and justice.
Ultimately, this isn’t about me. It’s about whether the American people and Congress will permit an unholy alliance of illiberals—comprised of devotees of a hardline religious-national agenda on Israel, and opportunists devoted to a broader anti-democratic vision of America—to manipulate them into betraying their own values. In an era of surging threats to the full spectrum of American civil rights and liberties, this bill is, in short, a test of whether, in the name of supporting a twisted definition of what it means to be “pro-Israel,” good people will allow themselves to become collaborators in a project to undermine American democracy.